Dissenting Opinion

James Madison rails against the alien and sedition acts,

Resolved: That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution in the two late cases of the “alien and sedition acts,” passed at the last session of Congress, the first of which exercises a power nowhere delegated to the federal government; and which, by uniting legislative and judicial powers to those of executive, subverts the general principles of free government, as well as the particular organization and positive provisions of the federal Constitution; and the other of which acts exercises in like manner a power not delegated by the Constitution but on the contrary expressly and positively forbidden by one of the amendments thereto; a power which more than any other ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.

That this state having by its convention which ratified the federal Constitution, expressly declared, “that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other states recommended an amendment for that purpose, which amendment was in due time annexed to the Constitution, it would mark a reproachful inconsistency and criminal degeneracy if an indifference were now shown to the most palpable violation of one of the rights thus declared and secured, and to the establishment of a precedent which may be fatal to the other.

That the good people of this commonwealth having ever felt, and continuing to feel the most sincere affection to their brethren of the other states, the truest anxiety for establishing and perpetuating the union of all, and the most scrupulous fidelity to that Constitution which is the pledge of mutual friendship and the instrument of mutual happiness, the general assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional, and that the necessary and proper measure will be taken by each, for cooperating with this state in maintaining unimpaired the authorities, rights, and liberties reserved to the states respectively, or to the people.

From “Virginia Resolutions.” Fearing a war with France and the danger of aliens and dissidents, Congress in 1798 passed three acts relating to the rights of foreigners and a fourth banning the publication of antigovernment literature. Protesting the exercise of such federal power, Thomas Jefferson—then vice president under John Adams—wrote state resolutions for Kentucky, and Madison wrote them for Virginia. Their authorship of the documents was not known for nearly twenty-five years.